Com. v. Hrusovsky, R.

• Court: Superior Court of Pennsylvania
• Decided: February 27, 2018
• Docket: 2495 EDA 2017
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

ROBERT HRUSOVSKY

Appellant No. 2495 EDA 2017

Appeal from the PCRA Order July 10, 2017 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000510-1995, CP-39-CR-0001334- 1995

BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 27, 2018

Appellant, Robert Hrusovsky, appeals from the order entered July 10,

2017, denying as untimely his petition for collateral relief filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

In April 1996, Appellant pleaded guilty to one count of involuntary

deviate sexual intercourse (“IDSI”) at Docket No. CP-39-CR-0000510-1996

and two counts of IDSI and one count of sexual abuse of children at Docket

No. CP-39-CR-0001334-1995.1 On June 20, 1996, he was sentenced to an

aggregate of sixteen to forty-eight years of incarceration. He did not file a

direct appeal.

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1 See 18 Pa.C.S. §§ 3123(5), 6312(b), respectively.

* Retired Senior Judge Assigned to the Superior Court. J-S02043-18

In January 2014, Appellant pro se filed a motion seeking transcription

of the notes of testimony in his case. The court denied the motion. On May

8, 2014, Appellant pro se filed a motion alleging that his sentence was illegal

and also challenging the discretionary aspects of his sentence. The court

treated this petition as an untimely first PCRA and sent Appellant notice

pursuant to Pa.R.Crim.P. 907 that his petition would be dismissed without a

hearing. Appellant responded to the Pa.R.Crim.P. 907 notice. The PCRA court

dismissed the petition.

Appellant timely appealed to this Court. We determined that because

the PCRA petition was Appellant’s first, the PCRA court should have appointed

counsel to determine whether Appellant could aver an exception to the PCRA

time limits and to examine if there were other issues of merit. See

Commonwealth v. Hrusovsky, 133 A.3d 80, *5-6 (Pa. Super. 2015)

(unpublished memorandum).

On remand, the PCRA court appointed counsel, who filed a motion to

withdraw and accompanying Turner/Finley2 letter. The court granted the

motion and, in November 2015, sent Appellant notice pursuant to Pa.R.Crim.P.

907 that his petition would be dismissed without a hearing. Appellant did not

respond. However, due to an oversight, the PCRA court did not formally

dismiss the petition. See PCRA Court Opinion (PCO), 8/22/2017, at 3. In

June 2017, Appellant pro se filed a “nunc pro tunc writ [of] habeas corpus pro ____________________________________________

2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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se in forma pauperis.” Due to its oversight, the court treated this as a timely

response to the Pa.R.Crim.P. 907 notice. The court then formally dismissed

Appellant’s PCRA petition.

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The court issued a responsive

opinion.

On appeal, Appellant raises the following issues for our review;

1. Did the trial court commit an error of law by failing to consolidate criminal offenses from the [sic] Lehigh County with the offenses from Northampton County.

2. Did the trial court err by committing double jeopardy in violation of an unconstitutional sentencing scheme.

Appellant’s Brief at 4 (unnecessary capitalization and answers omitted).

This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded in order to address the merits of his claims. See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions, must

be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

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(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).

Appellant’s petition is untimely.3 The PCRA subsumes all challenges to

the legality of the sentence, and such challenges must still satisfy the PCRA’s

time limits or one of the exceptions thereto. See Commonwealth v. Fahy,

737 A.2d 214, 223 (Pa. 1999). Appellant does not plead or prove one of the

time bar exceptions. Accordingly, the PCRA court did not err in dismissing his

3 Appellant’s petition is patently untimely. Thirty days after Appellant’s sentence was July 20, 1996. However, because that day was a Saturday, we will consider July 22, 1996, as the date his judgment of sentence became final. See Pa.R.A.P. 903; see also Commonwealth v. Concordia, 97 A.3d 366, 366-67 (Pa. Super. 2014); see also 42 Pa.C.S. § 9545(b)(3) (a judgment of sentence becomes final at the conclusion of direct review or the expiration of the time for seeking the review); see also 1 Pa.C.S § 1908 (omitting last day of a time period which falls on Saturday). Thus, Appellant’s petition, filed in May 2014, was over sixteen years and nine months untimely.

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petition challenging the legality and discretionary aspects of his sentence.

See Ragan, 923 A.2d at 1170; Fahy, 737 A.2d at 223.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/27/18

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